United States v. Marcus Goebel

898 F.2d 675, 1990 U.S. App. LEXIS 3936, 1990 WL 27095
CourtCourt of Appeals for the Eighth Circuit
DecidedMarch 16, 1990
Docket89-1152
StatusPublished
Cited by31 cases

This text of 898 F.2d 675 (United States v. Marcus Goebel) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Marcus Goebel, 898 F.2d 675, 1990 U.S. App. LEXIS 3936, 1990 WL 27095 (8th Cir. 1990).

Opinions

JOHN R. GIBSON, Circuit Judge.

This appeal presents questions involving the interpretation and application of Sentencing Guideline section 3B1.2(b), which provides for two-level reduction in the offense level of a minor participant in criminal activity. Marcus Goebel, who pleaded guilty to illegally possessing counterfeit notes with the intent to defraud, 18 U.S.C. § 472 (1988), argues that he should have been sentenced as a minor participant. We conclude that the district court’s 1 application of the Guideline section was not clearly erroneous and, therefore, affirm Goe-bel’s sentence.

When Goebel was arrested, he possessed 147 counterfeit $100 bills. Goebel also admitted to law enforcement officers that $30,000 in counterfeit money was hidden in a barn. In the district court, Goebel argued that he was merely a minor participant in the counterfeiting activity undertaken by him and his brother because his brother not only organized the operation, but also possessed skills essential to manufacturing counterfeit notes, which Goebel lacked. The district court refused to treat Goebel as a minor participant, and Goebel argues on appeal that the court both misconstrued and misapplied section 3B1.2(b) of the Guidelines.

I.

Section 3B1.2 of the Guidelines provides for a reduction in the offense level of minimal and minor participants in criminal endeavors. A minimal participant must be “plainly among the least culpable of those involved in the conduct of a group.” United States Sentencing Commission, Guidelines Manual, § 3B1.2(a), comment, (n. 1) (Nov.1989) [hereinafter U.S.S.G.]. A “defendant’s lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant.” Id. However, because a minimal participant is entitled to a four-level decrease in offense level, id. § 3B1.2(a), the Guidelines state that:

It is intended that the downward adjustment for a minimal participant will be used infrequently. It would be appropriate, for example, for someone who played no other role in a very large drug smuggling operation than to offload part of a single marihuana shipment, or in a case where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs.

Id. § 3B1.2, comment, (n. 2).

A minor participant, defined as “any participant who is less culpable than most other participants, but whose role could not be described as minimal,” id. § 3B1.2, comment. (n. 3), receives only a two-level reduction in offense level. Id. § 3B1.2(b). Goe-bel concedes that he was not a minimal participant, but argues that he was a minor one.

Goebel makes a threshold argument that the district court erred in its interpretation of the minor participant standard in section 3B 1.2(B). He argues that his conduct should be compared with that of his brother, the other participant in the counterfeiting. He expands this argument by stating that, while the application notes define a minor participant as “any participant who is less culpable than most other participants, but whose role could not be described as minimal,” id. § 3B1.2, comment, (n. 3), the Presentence Report in this case stated that a minor participant must be “substantially less culpable than the average participant.” (Addendum to Presen-tence Report at 1) (emphasis added). We first observe that this issue was not raised [677]*677either in Goebel’s objections to the Presen-tence Report or at the sentencing hearing.2 Ordinarily we do not review issues that are not raised in the district court. Stafford v. Ford Motor Co., 790 F.2d 702, 706 (8th Cir.1986).

The record is also abundantly clear that the district court, in sentencing, compared Goebel’s culpability to his brother’s. The record before us thus provides no foundation on which his argument may be accepted.

Were it necessary to reach this issue, we observe that Judge Wilkins, the Chairman of the Sentencing Commission, has rejected a similar argument in a counterfeiting case by stating that:

Whether Role in the Offense adjustments are warranted is to be determined not only by comparing the acts of each participant in relation to the relevant conduct for which the participant is held accountable, see Guideline § 1B1.3, but also, by measuring each participant’s individual acts and relative culpability against the elements of the offense of conviction. The sentencing judge’s knowledge of previous cases will likely aid in the final determination of whether, against this objective standard, a defendant’s degree of participation in the offense warrants a Role in the Offense adjustment.

United States v. Daughtrey, 874 F.2d 213, 216 (4th Cir.1989) (citations omitted and emphasis added).

Finally, we note that the supposedly objectionable language in the Presentence Report is identical to the Guidelines’ statement that section 3B1.2 “provides a range of adjustments for a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant.” U.S.S.G. § 3B1.2, comment, (backgr’d.) (emphasis added).

II.

We have held that a district court determination as to whether a defendant is a minor or minimal participant in criminal activity is a question of fact that may be reversed only if clearly erroneous. United States v. Ellis, 890 F.2d 1040, 1041 (8th Cir.1989) (per curiam); United States v. Williams, 890 F.2d 102, 104 (8th Cir.1989) (per curiam); United States v. Nunley, 873 F.2d 182, 186-87 (8th Cir.1989). In neither Ellis nor Williams, which were per curiam opinions on cases submitted without oral argument, did we analyze the rationale for this holding in detail. Opinions from two other circuits, written by members of the Sentencing Commission, reach similar conclusions after extended discussion and analysis. See Daughtrey, 874 F.2d 213; United States v. Wright, 873 F.2d 437 (1st Cir.1989) (Breyer, J.). Judge Wilkins observed in Daughtrey that 18 U.S.C. § 3742(e) (1988) instructs appellate courts to “give due deference to the district court’s application of the guidelines to the facts.” 874 F.2d at 217 (quoting 18 U.S.C. § 3742(e)) (emphasis from Daughtrey removed).

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Bluebook (online)
898 F.2d 675, 1990 U.S. App. LEXIS 3936, 1990 WL 27095, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-marcus-goebel-ca8-1990.